The Multiple Uncertainties of the Corporate Criminal Law

Abstract

Corporate criminal law refers to the body of legal norms that imposes criminal liability on the corporation, rather than individual members of the corporation, such as directors, officers, managers or employees. This chapter begins by suggesting that the reach of corporate criminal law has greatly expanded over the last three decades. A second striking feature of recent corporate criminal law is the degree to which the substantive criminal law in this field is often plagued by a lack of legal certainty as to the scope of the offence. Examples of legal “uncertainty” are introduced from securities law and anti-corruption law. The chapter goes on to argue that the legal basis for the new corporate criminal law – the doctrine of corporate legal liability – is similarly characterized by uncertainties of various kinds. The discussion highlights how a concern with legal certainty seems to run up against other policy considerations, notably the pragmatic need to take meaningful action against corporate wrongdoing. The chapter concludes with the suggestion that in the context of contemporary corporate criminal law, the meaning of legal certainty has been transformed from a fundamental principle of criminal justice to one of a number of competing policy considerations that have to be resolved in responding to socially undesirable corporate behavior. The combined effect of this net-widening and legal “uncertainty” has been to greatly increase legal risk for companies and to provide a strong incentive to invest in internal governance mechanisms aimed at social enforcement, i.e. corporate compliance.